Giancana v. Johnson

• Citation: 335 F.2d 372
• Decision Date: 11 August 1964
• Docket Number: No. 14271.,14271.
• Parties: Sam GIANCANA, Plaintiff-Appellee, v. Marlin W. JOHNSON, Agent in Charge, Chicago Office of the Federal Bureau of Investigation, Defendant-Appellant. In the matter of the Alleged Criminal Contempt of Marlin W. Johnson, Contemnor-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

335 F.2d 372 (1964)

Sam GIANCANA, Plaintiff-Appellee, v. Marlin W. JOHNSON, Agent in Charge, Chicago Office of the Federal Bureau of Investigation, Defendant-Appellant.

In the matter of the Alleged Criminal Contempt of Marlin W. Johnson, Contemnor-Appellant.

No. 14271.

United States Court of Appeals Seventh Circuit.

June 30, 1964.

Rehearing Denied August 11, 1964.

Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., James P. O'Brien, U. S. Atty., Frank E. McDonald, Asst. U. S. Atty., John Peter Lulinski, Thomas W. James, Asst. U. S. Attys., of counsel, for appellant.

George N. Leighton, Chicago, Ill., for appellee.

Before SCHNACKENBERG, KILEY and SWYGERT, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Marlin W. Johnson, agent in charge, Chicago office of the Federal Bureau of Investigation, defendant, has appealed from an order imposing a fine on him for criminal contempt entered by the district court, described by it as a summary commitment order, after he was called as an adverse witness by Sam Giancana, plaintiff, pursuant to 28 U.S.C.A., rule 43(b), during the hearing of the above-entitled case. Johnson refused to answer certain questions put to him by plaintiff's counsel and was fined $500 by the court.¹

The court's order recites five specifications of occurrences at a hearing on July 15, 1963, upon which the court relied in adjudging Johnson guilty of criminal contempt of court. We now consider these specifications in numerical order.

I.

Plaintiff's attorney, George N. Leighton, showed Johnson a copy of a telegram marked plaintiff's exhibit 5 for identification and asked if on June 25, 1963 he had received the original thereof. The witness replied:

"Your Honor, I respectfully decline to answer the question based on instructions from the Attorney General of the United States and pursuant to departmental Order No. 260-62."

Mr. Lulinski (government counsel) stated: "It is a part of the official file of the Federal Bureau of Investigation, and as such, with respect to that, Mr. Johnson as a subordinate of the Federal Bureau of Investigation, as a subordinate in the Department of Justice, is, by law, bound by the orders and directions of the Attorney General with respect thereto."

The court instructed the witness to answer the question. His answer was that

"* * * upon the direction of the Attorney General of the United States, I respectfully submit that I must decline to answer the question under his instructions, pursuant to departmental Order 260-62." ²

II.

When Johnson was asked whether he had occasion to call attorney Leighton at his office on June 25, 1963, he answered:

"Your Honor, again I decline to answer the question, based upon instructions of the Attorney General of the United States under Departmental Order 260-62."

The court asked:

"Will you tell me what his instructions were in regard to a question such as this, that does not require you to consult the files of the FBI?"

The witness answered:

"Your Honor, my instructions are `nor to give any testimony in this matter.\'"

The court instructed the witness to answer and the witness replied:

"Your Honor, in accordance with the instructions of the Attorney General, I respectfully decline to answer under Departmental Order 260-62."

III.

Relying on order 260-62, the witness declined to answer the following question by Mr. Leighton:

"Mr. Johnson, did you not in a conversation with me by telephone in the afternoon of June 25, 1963, tell me that you were not going to remove from the residence of Mr. Sam Giancana the 24-hour surveillance of FBI Agents that you had placed there? Did you not say that to me?"

Johnson based his refusal on an instruction contained in a teletype from the Attorney General addressed to the United States Attorney, Chicago, under date of July 15, 1963, which, as read by the witness, stated:

"Your attention is directed to Department Order No. 260-62 which supersedes Order No. 3229. In connection with the matter under which Special Agent Marlin Johnson is now under subpoena, he is instructed to abide by Order No. 260-62. Johnson is instructed not to produce any of the documents called for nor to give any testimony in this matter." (Italics supplied.)

The court instructed the witness to answer. He refused.

IV.

Mr. Johnson was then asked if he was in the courtroom "a moment ago, were you not, when the witness Carmen Skembare displayed to the Court the movie film taken on June 25, 1963, at and around the premises at 1147 South Wenonah Street in the Village of Oak Park?" The witness replied he declined "to answer under Departmental Order 260-62, on instruction of the Attorney General."

He was then asked by the court if he would give the same answer to all further questions asked by Mr. Leighton, and he answered in the affirmative.

The court asked:

"That would also apply to questions as to whether you recognize the faces of anyone you knew on the film you saw?"

and Johnson answered,

"My answer would have to be the same."

The court then asked:

"Both as to the address on Wenonah Avenue and also in regard to the Fresh Meadows Golf Course?"

The witness answered:

"Your Honor, that is correct on these instructions."

As to all other questions Johnson then continued to refuse to make answer.

When the order was entered on July 22, 1963, the court, at Johnson's request, permitted him to make the answer "Yes" to the question asking whether he was in the courtroom when Skembare displayed the aforesaid film to the court.

V.

Johnson testified that he was in the courtroom "a moment ago" when three picture films were exhibited and had a view thereof. He was then asked:

"Now, did you recognize in those pictures from the first one that we showed, Exhibit 2 to Exhibit 4, any Federal Bureau of Investigation agent under your supervision?"

He replied:

"Your Honor, I respectfully decline to answer under Departmental Order No. 260-62."

The court instructed him to do so and asked for his answer. Johnson said "It will remain the same, your Honor".

The court asked:

"May I ask you, Mr. Johnson, whether these films were at any time in the files of the Department of Justice or in the files of the United States Attorney?"

The witness answered:

"Under my instructions, your Honor, from the Attorney General and under Executive — Departmental Order 260-62, I must decline to answer."

The summary order of commitment recites that, before Johnson was ordered to answer the questions put to him, the court read the provisions of Rules 16-1 and 16-2 of Departmental Order 260-62 and Johnson read to the court the teletype communication from the Attorney General with regard to said order. Thereafter, the court concluded and ruled in open court that Rules 16-1 and 16-2 of said Departmental Order 260-62 did not excuse Johnson from answering the questions put to him as an adverse witness.

The court found that the questions put to Johnson were material and relevant to the issues before the court in the hearing of the supplemental motion for preliminary injunction; that notwithstanding the orders of the court, Johnson refused to answer said questions, although the court had made findings that the questions which he was ordered to answer were proper, and that Johnson was under a duty to answer them.

The District court further found that the conduct of Johnson in refusing to answer questions put to him, after he had been ordered to do so, is a criminal contempt committed in the presence of the court; and "this Summary Commitment Order is necessary to vindicate the court's authority and dignity in the premises".

The court adjudged, ordered and decreed that Johnson be punished for such criminal contempt of the court by imposition of a fine of five hundred dollars to be paid within ten days.

Johnson found himself involved in a clash of authority between the judicial and executive branches of the federal government. The solution of the conflict requires a reference to an act passed by the legislative department.

By 5 U.S.C.A. § 22, Congress has authorized the head of each executive department (expressly including the Department of Justice)

"* * * to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it. * * *"

Such regulations are presumably valid, unless arbitrary and unreasonable or plainly inconsistent with law. Edwards v. Madigan, 9 Cir., 281 F.2d 73, 77 (1960).

In the case at bar, Order 260-62 is a regulation not inconsistent with law and there is no contention to the contrary in this case. As such, the order has the force and effect of law. United States v. Barnard, 10 Cir., 255 F.2d 583, 589 (1958), cert. den. 358 U.S. 919, 79 S.Ct. 287, 3 L.Ed.2d 238. We have given recognition to this principle. United States v. Ansani, 7 Cir., 240 F.2d 216, 224 (1957), cert. den. sub nom. Milner v. United States, 353 U.S. 936, 77 S.Ct. 813, 1 L.Ed.2d 759. United States ex rel. Touhy v. Ragen, 7 Cir., 180 F.2d 321, 325 (1950), affirmed 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417; and United States ex rel. Touhy v. Ragen, 7 Cir., 200 F.2d 195 (1952).

Therefore, in determining whether Johnson was justified in his refusal to answer the questions put to him in the district court, we are confined by 5 U.S. C.A. § 22 to an examination of Order 260-62.

As to specification I, he was protected by Order 260-62. It is obvious that this is so because, if Johnson answered that he had received the telegram marked plaintiff's exhibit 5 for identification, the fact would have been established thereby that it was in the files of the Department of Justice.

On the other hand, as to specifications II and III, no application of Order 260-62 was involved. Johnson was asked merely to answer whether he had occasion to call...